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2011 DIGILAW 1016 (PAT)

Akshey Lal Pandit v. State Of Bihar

2011-05-11

JYOTI SARAN, R.M.DOSHIT

body2011
JUDGEMENT 1. This group of writ petitions under Article 226 of the Constitution are filed by the learned Advocates to challenge the result of the preliminary test conducted by the Bihar Public Service Commission for recruitment to 217 vacancies in the Sub-ordinate Judiciary of the State of Bihar. 2. The main challenge in these writ petitions is four-fold. First; the Bihar Public Service Commission (hereinafter referred to as the Commission) has no authority to conduct preliminary examination prior to the competitive examination contemplated under the Bihar Judicial Service (Recruitment) Rules, 1955. Second; the disputed preliminary examination was conducted on the basis of the Bihar Civil Service (Judicial Branch) (Recruitment) (Amendment) Rules, 2008 ignoring the sub- sequent amendment by Amendment Rules of 2009. Prior to the amendment by the Amendment Rules of 2009 the reservation was confined to the Scheduled Caste and Scheduled Tribe candidates; whereas under the Amendment Rules of 2009 the benefit of reservation has been extended to Backward Class and the Extremely Backward Class candidates also. Thus, by not following the Amendment Rules of 2009, the candidates belonging to the Backward Class and the Extremely Backward Class have been deprived of the benefit of reservation. In other words, they are compelled to compete with the other candidates in General Category. Third; the dispute is in respect of the omission of 25 questions from consideration. According to the petitioners some of those 25 questions did not have the correct option but the others had the correct option. The candidates who have attempted such questions and answered correctly stand to disadvantage on account of the omission of those questions from consideration. Fourth; the petitioners have challenged the decision of the Commission to allow only 10 per cent of the total examinees to take the competitive examination contrary to the Supreme Court direction to allow the candidates to take competitive examination in the proportion of 1:10 i.e. for every single vacancy at least 10 candidates should be allowed to take the competitive examination. 3. Some of the Lawyers have referred to the question papers and the alternative answers. They have tried to demonstrate that most of the questions omitted from consideration had the correct answer. 4. The petitions are contested by the Commission. Learned Additional Advocate General Mr. Lalit Kishore has appeared for the Commission. 3. Some of the Lawyers have referred to the question papers and the alternative answers. They have tried to demonstrate that most of the questions omitted from consideration had the correct answer. 4. The petitions are contested by the Commission. Learned Additional Advocate General Mr. Lalit Kishore has appeared for the Commission. He has submitted that the matter of recruitment to the Sub-ordinate Judicial Service is seized by the Honble Supreme Court. The matter is yet pending before the Honble Supreme Court. He has submitted that the Honble Supreme Court has, in its order dated 3rd December, 2010, taken note of the advertisement dated 9th August, 2008 and the Rules then existing i.e. as they stood prior to amendment by the Amendment Rules of 2009. In the circumstances, the Honble Supreme Court observed; ".....In light of the said order there was no occasion for the State or for the Public Service Commission to hold any doubt on the question of applicability of rules for filling up the existing 217 vacancies. We have been informed that preliminary examination for said recruitments had been held on 31st December, 2009, but the results were not announced because of the aforesaid controversy. We direct that in so far as these 217 vacancies are concerned, the process of recruitment already initiated shall be expedited and completed, preferably within six months. This exercise shall be completed not- withstanding any interim orders by any Court." 5. He has submitted that in view of the aforesaid direction issued by the Honble Supreme Court the Commission was required to proceed in accordance with the Rules as they stood prior to the Amendment Rules of 2009. He has submitted that by Rule 2 of the Amendment Rules of 2008, the Commission is expressly empowered to hold preliminary examination and to allow only 10% of the total examinees to attend the competitive examination. Accordingly, the preliminary examination has been held; the result is declared and the Commission has allowed around 10 per cent of the examinees to attempt the competitive written examination. He has also relied upon the judgment of the Honble Supreme Court in the matter of Andhra Pradesh Public Service Commission V/s. Baloji Badhavath and Others [ (2009)5 SCC 1 ], In the said judgment the Honble Supreme Court has considered the scope and ambit of the preliminary examination. He has also relied upon the judgment of the Honble Supreme Court in the matter of Andhra Pradesh Public Service Commission V/s. Baloji Badhavath and Others [ (2009)5 SCC 1 ], In the said judgment the Honble Supreme Court has considered the scope and ambit of the preliminary examination. The Court has, in paragraph 25 of the judgment, observed; "How the Commission would judge the merit of the candidates is its function. Unless the procedure adopted by it is held to be arbitrary or against the known principles of fair play, the superior courts would not ordinarily interfere therewith....." "29. Indisputably, the preliminary examination is not a part of the main examination. The merit of candidate is not judged thereby. Only an eligibility criterion is fixed. The papers for holding the examination comprise of general studies and mental ability. Such a test must be held to be necessary for the purpose of judging the basic eligibility of the candidates to hold the tests. How and in what manner the State as also the Commission would comply with the constitutional requirements of Article 335 of the Constitution of India should ordinarily not be allowed to be questioned." 6. In view of the above referred direction issued by the Honble Supreme Court in its order dated 3rd December, 2010, we are of the opinion that for filling up 217 vacancies advertised, the Commission has rightly followed the Rules as they stood prior to the amendment by the Amendment Rules of 2009. 7. The question of validity of a preliminary examination is set at rest by several judgments of the Honble Supreme Court over the years. It is well settled that in case of large number of applicants compared to the number of vacancies advertised, the Public Service Commission or any agency for that matter may hold a preliminary examination to shortlist the number of candidates who may be allowed to take the competitive examination/interview. 8. In the present case against the 217 vacancies advertised the applications received were more than 21,000. In view of comparatively large number of applicants, in our opinion, the Commission was fully justified in holding the preliminary test with a view to shortlisting the candidates eligible to take the competitive examination. In any case, for the present matter, the Commission is expressly empowered to hold a preliminary test. 9. In view of comparatively large number of applicants, in our opinion, the Commission was fully justified in holding the preliminary test with a view to shortlisting the candidates eligible to take the competitive examination. In any case, for the present matter, the Commission is expressly empowered to hold a preliminary test. 9. In the present case, as provided under the Amendment Rules of 2008, 10 per cent of the candidates appearing in the examination have been declared successful to take the competitive written examination. We see no error in the decision of the Commission to restrict the number of successful candidates for taking the competitive examination to 10 per cent of the total examinees. 10. Next question is about omission of 25 questions from consideration. It is submitted that preliminary examination was divided into two papers; one of General Studies for 100 marks and second of Law paper for 150 marks. Out of 150 questions set out in the paper of Law, 19 questions had a doubtful answer and in the paper of General Studies, 6 questions had some controversy in respect of the correct answer. In the circumstances, the Commission has decided to omit the said 25 questions from consideration and to declare result on the basis of 225 questions alone. 11. The aforesaid omission is disturbing. It is beyond our comprehension that the constitutional institution, specialized in making recruitment, aided by the experts such as the Commission should set the question papers without ensuring that the optional answers contain the correct answer. This also speaks volumes about the sincerity with which the examination papers are set by the paper setters. It is quite possible that some of the examinees have correctly attempted some of those 25 questions. They would certainly stand to lose on account of omission of those 25 questions from consideration. 12. In the interest of justice, we consider it expedient that the Commission should extend its result or the qualifying marks by 25 marks. Meaning thereby that all those candidates who have failed to secure 154 marks (last one of the qualified candidate) but have secured 129 or more marks, should also be considered qualified to take the competitive examination. The Commission will publish a supplementary merit list of the candidates who have secured less than 154 marks but 129 marks or more in the preliminary test. The Commission will publish a supplementary merit list of the candidates who have secured less than 154 marks but 129 marks or more in the preliminary test. Same direction will apply to the candidates in the categories of Scheduled Castes and Scheduled Tribes. 13. Learned Additional Advocate General Mr. Lalit Kishore has strongly objected. He has submitted that the aforesaid direction is in contravention of the statutory Rules. He has submitted that if the aforesaid direction is permitted to stand, the Commission will have to allow around 40 per cent of the examinees to take the competitive written examination instead of 10 per cent of the examinees permitted by the Rules. He has submitted that in the past whenever such controversy arose the Honble Supreme Court has approved the omission of disputed questions from consideration and declaration of result on the limited or truncated marks. 14. We are alive to both the situations. But, as discussed hereinabove the declaration of the result based on truncated question paper will lead to injustice to at least some of the examinees. We are also of the opinion that the constitutional institute like the. Commission cannot be allowed to take the things so casually. Therefore, in spite of the statutory Rules; we have issued the above directions to mitigate the injustice that may be caused to some of the examinees. Lest we may have to direct the Commission to hold the preliminary examination afresh. That would delay the recruitment process already delayed. On the other hand, except that the Commission will have to arrange written examination for larger number of examinees, no prejudice is going to be caused to the Commission. 15. Subject to the above directions all these petitions are disposed of. 16. We also clarify that these directions are subject to the ultimate decision that will be rendered by the Honble, Supreme Court in the proceeding pending before it.